Should Shield Laws Protect Journalists? Or Journalism?

from the key-distinction dept

Mathew Ingram has some excellent coverage of a bad ruling in Oregon, wherein a blogger was found not to be covered by the state's shield law (protecting her ability to hide sources) because she wasn't affiliated with some big media organization:

...although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law.

Mathew's post covers a number of other recent cases that have been more broad in saying who counts as a journalist. And, of course, there have been attempts at creating a federal shield law for journalists.

But what really strikes me about this, is that a ruling like this seems to be looking at the wrong issue. It's not about whether or not it protects journalists, but whether or not it protects journalism. That is, in a few similar rulings, it always seems to come down to the affiliations of the person -- with the claim from some that if they're not working for a "media organization" then it means that "everyone" is protected by the shield law. We can discuss whether or not everyone should be covered by such a law, but even that misses the point (in a big way). The fight isn't over who should be covered, but what. The point is to protect journalism. And journalism is defined by the action, not the person or their affiliations. Anyone can do journalism -- associated or not. This does not mean that everything is journalism, however.

For example, I've noted plenty of times that I am not a "journalist." However, at times, I most certainly engage in journalism.

This can be true of almost anyone. If what they are doing for the sake of gathering some information is in the process of gathering that information to better inform the world of a subject, I think it's fair to call it journalism. However, that does not make the protections so broad that everything can be kept secret. In such situations, information can be revealed when it was not done specifically for the purposes of informing the public.

Unfortunately, this distinction between journalism and journalist seems to get lost all too often in these discussions, and it's why we get bad decisions like this one.

Reader Comments

The Press Is No One

As Volokh points out, the latest clueless amendment to the constitution proposed by people hostile to the Citizens United ruling would give the government grounds to ban speech from any corporation, including those in the TV and newspaper industry.

So if corporations aren't the press, and individuals aren't the press, who is?

Re: The Press Is No One

Re: The Press Is No One

I was always of the impression that "freedom of the press" and shield laws were to protect individuals. I probably won't articulate this point well, but do we really think the founding fathers meant it to be about 'big media corporations' and 'payrolled journalists' as opposed to the every day bloke who has some facts/opinions or reliable information that they believe should be heard? Were our state lawmakers blind to this when they came up with these shield laws? Aren't we all "journalists" at some point in time in one way or another?

"For example, I've noted plenty of times that I am not a "journalist." However, at times, I most certainly engage in journalism."

That poses a really interesting question Mike. You post more than most folks, it's reporting on stuff(to take the simple route), is it therefore not journalism?

Do the waters get muddied because you have bigger fish to fry, as a general rule, in the office?

Is the video of passive college students getting maced while sitting down not journalism?

Is there some law(s) that escape me here? One of my long time e-commerce clients, by happenstance, caught me hazing the sock puppets on creative america's failed attempt at a fan page and just gave me politicalsensibilty.net to play with. More on that later, maybe... sorta busy.

Having said that, what would inherently make or not make me a journalist when, at least relevant to said domain, I am reporting news as unbiasedly as humanly possible? I dig stuff up, ask questions and so on.

Must I incorporate the notion? I frankly have no idea but I will likely ramp that stuff up so I can continue to bitch about things. I grow most weary of creative america. Largely because there is nothing creative about them lol...

Re:

Not to speak for Mike, he can do that himself.

His concern with respect to Oregon's sheild law would be one that I share. Working for or at traditional "media" no more makes one a "journalist" that my sweeping the floor at a hospital makes me a medical practitioner. Now that I've said that, lets go on.

It does appear that the judge in the case had it right when he said that Cox didn't follow journalistic ethics or behave to a standard that one would normally expect of a journalist.

I'll leave the discussion of the First Amendment to the US Constitution to address those questions.

If Ars is right in their "reportage", and you really did want another new word tossed your way, right then her behaviour and posts would be more appropriate to a barroom let's change the world chat we all have had over a beer or two.Looking at her blog, I'd say she indulges in lengthy rants.

All of that said she does provide some supporting evidence of her point(s) of view and that, even though she writes poorly, there is a case to be made for some or a lot of it. At least on the surface.

So she's a commentator not a reporter. And a commentator or editorialist is as much a journalist as a reporter is. Where she may fall into trouble on that is that she labels herself as an "investigative" blogger which most would read as combining the roles of reporter and commentator. Ok, lots of journalists do that too. Though the bar is raised a bit on what makes up the reporter part of it all.

The law in Oregon is where this working for traditional media comes in is written into the shield law there. From what I've read so far, by the way, it would also not apply to a traditional independent broadsheet printer in much the same way it's been applied to Cox which means I don't like it much. The judge did go further in citing journalistic ethics and method of operation and found that she did none of that either which would, it seems, disqualify her as well from claiming to be a journalist, investigative or otherwise. On that point I'd agree with the judge as she has no training or past employment as a journalist so he went to ethics. In that arena he found few. if any. A quick read of her blog and I'd agree.

All that said I'm uneasy with this ruling and the base of it being that someone has to work in or for traditional (print or broadcast) to be able to make a claim to be a journalist without having to convince the guy/gal behind the bench that you are. Cox skates so close to the edge that I can easily see her going over it or just ignore it. To me, however, she's a journalist. A bad and incompetent one but a journalist nonetheless. Reminding me more of the copyright/patent/maximalist/trolls who so often drop in here than a journalist BUT she is still a journalist.

What neither she or Mike are are reporters. They're commentators/editorialists/critics but they aren't reporters. All of those are or may be journalists.

Mike, my friend, like it or not you're a journalist. You're not a reporter though in that you rarely if ever break a story and make no pretense to being disinterested.

The latter is something reporters do all the time. I'm not being critical but for the life of me I can't imagine a single human being working in, say, a war zone and being disinterested or unaffected by it. When they write a story though none of that is supposed to come to the surface.

Mike and other writers here cite sources that may have piqued their interest that support their points. Far more often that not they link to sources supporting another view even if they do so in a critical way. That's the job of a critic/editorialist, however, so complaining that the writers here don't adhere to journalistic standards because the link/source is cited in a critical or even dismissive way are dead wrong.

In the paper and ink world this site is a journal, in the traditional sense, so those who write here are journalists. They're also critics and editorialists but so what?

So, in her strange, ranting way is Cox.

She may still have been found liable for slander or libel even then but the reward to the plaintiff would be smaller or she may just have been slapped on the wrist.

What both the judge and the law in Oregon fail to take into account is that the journals and broadsheets of the 21st Century are on Web sites, not in print and that they may very well not work for a "recognized" news organ. I find that dangerous.

By the way, reportage is an amalgam of reporter/critic/editorialist and that's the output. In the old days you could identify them because they were the only ones who got bylines. Today, the intern who brings the coffee and donuts around after a run to Tim Horton's gets a byline so perhaps that term should go into the same dustbin as Tim's "always fresh" claim has gone.

As long as you follow some basic, simple journalistic standards Nigel, you're a journalist. You may be a reporter, commentator, critic, editorialist or the guy whose output is described as reportage (longer more in depth stuff, very often). You can be as disinterested as you want or can be or be like Mike who is a critic and writes from that perspective.

Oh, and someone needs to tell Creative America that one of the unshakeable design rules is do NOT, NOT EVER load up the landing page of a site with so much Flash that it crashes every known browser. Unless you're a porn site, of course, then go for it. It's a horror show of a site for a number of reasons so that the landing (home) page is full of flash that's never started only goes to show what you can expect inside. Other than propaganda. And there's just gotta be some porn in there somewhere! ;-)

It's an interesting case, unfortunately compromised by how this particular individual - based on Ars Technica's discussion about this case - is somewhat shady and not very sound of mind. Mike's got a pretty fair balance between the two extremes of definition though.

"unfortunately compromised by how this particular individual - based on Ars Technica's discussion about this case - is somewhat shady and not very sound of mind"

Not being snarky here but is that point relevant?

I am 44, still single and would rather strap a snowboard to my feet and throw myself off cliff in late jan. rather than grow up and give the folks some grandkids. Does that make me any less informed or not a journalist on various matters I would chose to report on?

Re:

The issue here, again going by Ars Technica's piece, is that the individual in question apparently did not engage in what anybody would consider journalism but rather started a smear campaign, and then proposed "consulting services" to the target firm to make it go away, which looks awfully like extorsion to me, and is probably the reason such huge damages were awarded.

The judgement also did not dismiss the blogger's claim to journalism shield laws only because of no affiliation with established news outlets, it rather mentioned this as one of the many criteria one could use to be recognized as a journalist and benefit of Oregon's specific journalism shield law. The judge basically pointed there was no evidence of a journalist ethic (no fact checking, etc.) and thus the blogger did not qualify.

Re:

Hi Nigel, Ms Cox may be strange, of unsound mind and a number of other things but that doesn't affect that what she does there is journalism. Very, very, very very badly but it's still journalism. Of the editorialist/critic variety but none of that means she's not, broadly speaking, a journalist. As it is I've known many, many people in "recognized" journalism who are every bit as unhinged as she appears to be. A bit toned down but just as nutty. Being a nutbar doesn't disqualify you.

Her registering a website in the name of a business she's having a dispute with and adding "sucks" at the end is highly unethical. Then again, it would be unethical if she was a dentist, doctor, lawyer, electrician or ditch digger. (And alone may be actionable and impossible to defend with the claim of "I'm a journalist!".)

Maybe you should go read her site. As long as you can stand it. {big goofy grin}

Her fav this morning seems to be a rant about Forbes and the reporter who leaked the email. She doesn't seem to understand that one you hit the send button you lose all control over what happens to is, just as you would in snail mail. Particularly in a case like this where the email was probably cited even if it wasn't entered as evidence.

If anything, she's a wonderful example of how NOT to do journalism. That doesn't disqualify her but I'm 110% certain that I'd never hire her.

The state should have drafted a better shield law. That being said, if you want to qualify as a journalist in Oregon, it looks like all you have to do is print a few copies of posts on your blog and distribute them as a pamphlet.

read her writing, she isn't a journalist by any stretch of the word, she is an angry little girl, screaming and crying till she got attention, she didn't think she would get

she even registered the guys name as a web site and is bashing him, what "journalist" does that??

what "journalist" creates a website with "sucks" at the end of the business's name to bash them, a little child does that

from her own site

""I am the Cursing, Hillbilly, Maddog Blogger, Real Journalist Crazy Crystal Cox.. .. Love Me or Hate Me.. I still do what I do.. So Carry on with your Rampage on Me.. the Truth Remains the Truth and ya sometimes with no boss man, corporate asshole to answer to, politician or advertisers to control me, well I even get to say Fuck and Shit in my "Media".. Neener Neener.."""

journalist???? no, ranting little child

and
"""calling both sides is not really investigating and plus isn't that heresay anyway..??""""

really, so she admits she doesn't call both sides, she posts her side only, filled with her speculating on every crime ever committed by them, with no proof , again, a little child, she isn't a journalist

and called about on her post of "facts" she claimed she had an insider send her the info, when asked, she said she doesn't have to prove anyone gave her the info, I don't have to reveal my sources, hence why she is guilty of defamation, she isn't a journalist

not every person who blogs or post on the internet is a journalist, stop pretending you are, half of everything she says, is well, its not illegal what they did, but I think it should be, they are corrupt and conflict of interest and they betrayed people, the other half is just shit she seems to make up, with no proof, other than her own opinion of it

Not 'big media' but any media

This ruling was based on a specific state law that defined a journalist as anyone who 'engages in' among other things, activities associated with certain media. In another paragraph the law defined what media are covered: electronic media are not mentioned (but not omitted) but print is.

Thus it is my guess that she would have qualified under the shield law if she had simply printed out her posts on a newsletter and sent copies to a few subscribers. The law does not specify the size of print runs. If she had hard copies circulating, I think she would have qualified.

Journalism versus Journalist

The idea of distinguishing between journalist and journalism is an interesting one. How do you have politicians define whether content is journalism without violating the first amendment? And if you are protecting the "act of journalism", not the content or journalist, how to do you define journalism without getting back to the intent of the journalist?

Do we want to protect someone who gathers "information" on their ex-spouse and disseminates it to the public? Is every private investigator covered by the shield law if the information is shared with the public?

The difficulty here is that defining journalism outside the media priesthood may not be any easier than defining journalist. Whatever the tone of this blogger, her report that a company is engaged in bankruptcy fraud, if true, is news.

The real question may be do special shield laws for news providers make any sense in a world where everyone is a news provider. Anyone posting information on YouTube, twitter or facebook is doing journalism.

For example, I've noted plenty of times that I am not a "journalist." However, at times, I most certainly engage in journalism.

That's just silly double-talk. A journalist is one who engages in journalism. You are neither. And it has little to do with your affiliations or associations.

The court in this blogger's case listed several factors that go into determining whether someone is a journalist: "(1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story."

N otice how affiliations is but one factor. I like TD, Mike, but everything here is entertainment value only. Until you develop some journalistic integrity, i.e., more of these factors, you aren't even close to "engaging in journalism."

Re:

Seems to me like Mike would fit based on what I consider the more important criteria, but let's go down the list:

[1] No idea if he's got a degree or training;
[2] I doubt affiliation with his own blog counts, but it should because it's clearly a mixed news & opinion entity;
[3] Does these;
[4] No idea, but probably true;
[5] Near as I can tell he doesn't have confidential sources; in any event, he does allow confidential and/or anonymous commentary sections;
[6] Does this
[7] Definitely does this

My personal feeling (TD aside) is the burden of proof for someone NOT being a journalist must be met, not the accused trying to use the shield law to prove they ARE.

Re: Re:

Good grief. I'm not gonna quibble with you over the factors (let's just say I strenuously disagree with your assessment), but Mike himself admits that he shouldn't be held up to journalistic standards. God forbid he actually stand behind what he writes.

As far as the burden goes, wouldn't it be the defendant's burden since the shield law is a defense? That one seems like a no-brainer, but I haven't researched the point.

Re: Re: Re:

From the judge's ruling, if she'd been able to trigger the Oregon shield law it would have been the plaintiff's responsibility to prove, on balance of probabilities, (civil, not criminal action, remember) she wasn't covered. Given that he rejects that based on the particular wording of the Oregon legislation that was the moment burden of proof on many points "balance of probabilities again" fell to Cox as the defendant.

As the judge then focuses on Cox (defendant) it appears that the plaintiff had at worst a prima face case for defamation.

The ruling then goes on in detail to reject all of Cox's arguments in her defense. Contrary to comments on Ars, here and other places the judge did not rule that she was not a journalist. He rules that she and her blog don't qualify as "media" under the Oregon statue after exploring that in detail prior to this:

Defendant cites no cases indicating that a self-proclaimed "investigative blogger" is considered "media" for the purposes of applying a negligence standard in a defamation claim.
Without any controlling or persuasive authority on the issue, I decline to conclude that defendant
in this case is "media," triggering the negligence standard.

Defendant fails to bring forth any evidence suggestive of her status as a journalist.
For example, there is no evidence of
(1) any education in journalism;
(2) any credentials or proof of
any affiliation with any recognized news entity;
(3) proof of adherence to journalistic standards
such as editing, fact-checking, or disclosures of conflicts of interest;
(4) keeping notes of conversations and interviews conducted;
(5) mutual understanding or agreement of
confidentiality between the defendant and his/her sources; (6) creation of an independent product
rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story.

Without evidence of this nature, defendant is not "media."

Notice that the ruling on this issue ends with his turning down her defense of being media and that he is very careful to use the phrase "suggestive of" prior to his 7 points, all of which he says she does not adhere to.

That indicates very strongly that the "test" of being a journalist isn't mandatory nor are one or several of the points required to come to a conclusion that she is a journalist. The test is used to determine, in the absence of any other control (precedent), to determine her defense that she's media and that it is not her journalistic qualifications is that he rejects.

The last part of the ruling is his rejection of her defense that what she wrote was, in some way, protected speech which he does what appears to be a good job in completely demolishing. Again, I'll leave that for Americans more fully versed in the First Amendment than I am.

In short, he doesn't create a list or test for what is or isn't journalism but on what qualifies as "media" based on the law and precedence available to him to reject her argument that what was written had to pass the test of negligence for her to be found liable.

If anything all the test, alone, establishes is that she's a shining example of how NOT to be a journalist of any kind be it disinterested reporter, writing what's called reportage, commentator, critic or editorialist.

Taken together with the other findings, in Oregon, at least, that disqualifies her blog from being "media" in law.

Finally, as some of the most well known and respected journalists operating in both the U.S. and Canada never set foot in a journalism school prior to their employment as journalists may be the weakest test of the first point. The Writers here are more than able to pass that test as long as the site and they pass the next 6.

On the second point, almost as weak, taken alone it seems meaningless in these days of syndication by RSS, Tweets, Facebook and many other distribution methods now open. This blog, often followed on the likes of Ars, Slashdot (where I found it) and others would provide the answer to it even if they are not ink and paper publications or agencies though I'd say they are extremely well known away from that world. I'd day this site more than passes the second test even if it's not a part of AP. (Frankly, who would want to be? But that's a story for another day.)

This site passes the remaining tests with flying colours, I'm sure. If nothing, else Mike has better lawyers who would have insisted on it when the blog got started.

Even then the judge's use of the phrase "evidence suggestive of" make it incredibly weak for it to be precedent setting. And that must have had Cox's lawyers ripping their hair out. Unless she was as foolish and ego driven as she sounds and acted for herself. Somehow I don't think so though being a fool to that extent is easier to do in civil and common law cases than it is in criminal cases by several hundred orders of magnitude. So this site would pass the tests the judge sets with more than an aircraft carrier's worth of room to spare.

Given those tests this site can be clearly viewed as journalistic even if those writing for it don't consider themselves to be journalists. One more time, being a journalist doesn't mean being a reporter. It also means commentator (here), critic (here) and editorialist (here though I can only think of one time, off the top of my head where Mike wrote a piece as representing the views of the entire site).

Then again, if you want to set up your own blog, and write news and commentary and so on the example of Ms Cox and the results of that as outlined in the ruling are a textbook case on how NOT to.

And remember. blithering idiots can be and sometimes are journalists. Sadly, after failing at that they far too often move into politics and write up dangerous silliness like SOPA and PROTECT IP. Sometimes, even sadder to say, they become lawyers. (One of the oldest jokes/truisms at universities with law schools is that failures at every other arts program eventually end up graduating from law school.)

Re: Re:

I agree with this assessment. Techdirt engages in advocacy/editorializing journalism imho.

Just look at Fox News/MSNBC and you'll see how far the word journalism has been stretched already. If a lot of their cr... errr content can be called journalism, then much of techdirt should easily fall into the category of journalism also.

Re: Re: Re:

Advocacy/Editorialism/Criticism are every much journalistic pursuits as anything the court has cited. Good grief, crack a paper and look inside at the Editorials, op ed and commentary sections not to mention film and stage reviews and criticism not to mention political criticism.

In point of fact, that's exactly where journalism and even the word and concept came from.

Self published broadsheets. Similar to the ones that promoted the cause of those rebelling against British rule prior to the establishment of the United States.

Disinterested reporting is, in fact, an invention of the interwar 20th Century. And up until the end of WW2 wasn't widely practiced. As you correctly point out, it's falling out of favour at the moment. I'm not sure if it's a good or bad thing but it's happening and it's STILL journalism. Reporting, particularly disinterested reporting (largely a fiction anyway) is only a small part of it.

That said, Techdirt does indulge in journalism. It editorializes, comments on and criticizes on stories relating to a relatively small set of interests which (small or large set of interests) makes it journalism.

IF my citing Fox and MSNBC you are inferring that they are masking the above behind disinterested (aka factual) reporting then you're right. Broadly speaking, though, what Techdirt does is journalism, even if they very rarely do disinterested (factual) reporting which, as I've said is, was and always will be largely a fictional concept.

Re:

As I said, Nigel, she's still doing journalism. Utterly, completely, totally and irretrievably bad and incompetent journalism but still journalism.

More correctly, perhaps, a case study in how it's NOT done. Still, which ought to make Average Joe happy, if a journalist does something that's actionable it's actionable. And where she passes off a rant (incoherent commentary, if you prefer) as a news story (ideally both factual and disinterested but that ideal doesn't exist anywhere that I know of) it's still actionable.

That and she went far beyond the bounds of her horrible, rambling incoherent attempts at other forms of journalism as well as certain acts beyond that that wouldn't be protected anyway, made her actionable and she's paying a price. Well, she doesn't and never will have the award money so the plantiff will never see a penny of it.

Re: Re:

Re: Re: Re:

Completely and totally agreed.

Though she lost her case on merit alone as I can't find a single mention of that email in the ruling. And had that or any other judge been presented with that and allowed it as evidence (for a host of legal reasons shrouded in page after page of legal mumbo jumbo no doubt) it WOULD have been mentioned.

Extortion is a criminal matter and the plantiffs here may not see an upside in pursing criminal charges.

What I find kinda sad here is that the story is making the rounds as something that passes judgement on who is or is not a journalist. I can't see that. He only goes there after dismissing defense after defense as if she is one before the 7 point list comes out and put into play and only to pass judgement on whether or not she and her side qualify as media under Oregon law which he then dismisses. He's built up to that point very carefully as I read it and, as I read it particularly the "suggestive of" statement as meaning that it's one of number of things taken into account for what is about to come and that she fails on all of them. Not just one or two. Only after that does he rule that she and her site are not media and entitled to the protection that would bring. The use of "suggestive of" indicates to me that one must pass one or all of them or any significant combination of them to set the standard of journalism which would trigger the defense of being media. As she passes none of them the definition, loose as it is, of journalism he suggests doesn't come into play any further.
I have to stand by my rather short summation but it's not whether or not she's a journalist, whether or not she's media or much else that lost her the case in whole or in part. It's her statements, actions, lack of ethical standards and, unsaid, the indication that she was pursing a personal vendetta that did her in.
(The judge walks carefully around that one and stops just short of it after pointing the reader in that direction and that direction only as he reviews the evidence.)
Taken together it's everything that came before and then the suggested test that finally sinks her case. And Ms Cox filled up the bomb, put on the fuse, attached it, set it alight and stood back to watch it go off. A few hundred yards too close.
Once the bomb went off it shredded her defense on the grounds of protected speech with, the judge following along to demolish what was left.
Ms Cox is her own worst enemy. That much was clear after looking at her blog this morning. The judgement only clears my specs a bit more and leaves it crystal clear.
Judging from her blog, she hasn't learned a thing.
The world certainly won't be a poorer place when she's gone and I don't think this judgement will affect the wider area of Internet journalism all that much unless a doppelganger of her appears and starts it all up again. Frankly outside of a certain US congresswoman from Minnesota I can't think of a single functional and functioning human being who is quite that dense, full of herself and just plain stupid coming along for a long long time.

Of course she would be stupid enough to send that email which could too too easily be seen as an attempted extortion. So, in addition to ranting about the cruel world she should consider herself lucky that she's not the subject of a criminal investigation.
Yet.

For me, the issue is at what point do you go from "someone with an ax to grind" and become a journalist?

As an example, I don't think that much on Techdirt has to do with journalism, and has everything to do with grinding axes. We get to see everything here from one sided attacks to attempts to tar and feather people (items about the sponsors of SOPA, example), to outright personal attacks. There isn't any journalism going on here, IMHO.

Since there is a lack of journalism, why should the shield law come into play? What goes on in the typical blog isn't journalism, for the most part it is water cooler chatter and loud mouth op-ed work.

What this girl was doing wasn't journalism at all, rather it was axe grinding. There was no attempt at impartiality, no attempt to be "above to topic" or to show both sides. It was "fact supported opinion", which is pretty much on par with Techdirt.

Since there is no journalism at play, the shield law shouldn't apply, and any concern about "who does the shield law cover" put the side, because really it doesn't apply here at all.